Los Angeles Branch Naacp v. Los Angeles Unified School District

We took this case en banc to decide the extent to which the doctrine of res judicata bars this class action alleging intentional segregation in the Los Angeles public schools in violation of the United States Constitution. Defendants moved in district court for summary judgment on the ground that plaintiffs were seeking in this action to relitigate the same claim that had been litigated and decided in Crawford v. Board of Education, 113 Cal.App.3d 633, 170 Cal.Rptr. 495 (1980), aff'd, 458 U.S. 527, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982). The district court denied the motion, 518 F.Supp. 1053, and certified this interlocutory appeal. 28 U.S.C. Sec. 1292(b).

The Crawford litigation began in 1963 as a class action on behalf of black high school students seeking to desegregate a high school in Los Angeles. Before trial, the complaint was amended to assert a desegregation claim on behalf of all black and Hispanic students attending school in the Los Angeles Unified School District. The case was filed in the California courts just months after the California Supreme Court, in Jackson v. Pasadena City School District, 59 Cal.2d 876, 31 Cal.Rptr. 606, 382 P.2d 878 (1963), held that school boards in the state were under a state constitutional obligation to take reasonable steps to alleviate racial segregation in the schools, regardless of whether the segregation was de facto or de jure in nature. The case went to trial in 1968 under a stipulation that permitted the court to consider activities of the defendants occurring from May 1, 1963 to the time of trial. The trial court rendered its decision on May 12, 1970, finding that the District schools were substantially segregated and concluding that this segregation was both de facto and de jure in origin.

On appeal, the California Supreme Court refused to affirm on the basis of the trial court's conclusion of de jure segregation. Crawford v. Board of Education, 17 Cal.3d 280, 130 Cal.Rptr. 724, 551 P.2d 28 (1976) (Crawford I ). Instead, it chose to affirm on the basis of its previous decision in Jackson that the California Constitution imposed a duty upon school boards to take reasonably feasible steps to alleviate segregation in the public schools, regardless of its cause. Id. at 301-02, 130 Cal.Rptr. at 738, 551 P.2d at 42. The court then remanded the cause to the trial court for the development of a reasonably feasible desegregation plan.

On remand, the trial court rejected the largely voluntary desegregation plan submitted by the School District and ordered the implementation of a plan calling for large-scale mandatory pupil reassignment and transportation. The court-ordered plan went into effect in the fall of 1978. In October 1979, the trial court began hearings to determine the constitutional sufficiency of its court-ordered plan. On November 6, 1979, before the hearings could be completed, the voters of California approved Proposition I,1 an initiative measure which amended the California Constitution to limit the power of state courts to order mandatory pupil reassignment and transportation on the basis of race. In effect, the state courts were forbidden to order those measures except in circumstances where federal courts could do so to remedy violations of the United States Constitution. In addition, Proposition I authorized any court having jurisdiction, upon application by any interested person, to modify existing judgments or decrees containing provisions for mandatory pupil reassignment and transportation, unless such modification would be prohibited by the United States Constitution.

Following passage of Proposition I, the School District applied to the California courts for an order halting mandatory pupil reassignment and transportation in the District. On May 19, 1980, the Superior Court denied the application on the ground that the trial court in Crawford I had found de jure segregation and thus the elimination of mandatory pupil reassignment and transportation in the District would be prohibited by the United States Constitution. The Superior Court thereafter issued a new order on July 7, 1980, substantially continuing the 1978 desegregation plan.

The California Court of Appeal reversed and vacated the July 7, 1980, desegregation order. Crawford v. Board of Education, 113 Cal.App.3d 633, 643, 170 Cal.Rptr. 495 (1980) (Crawford II ). The appellate court determined that the 1970 findings by the trial court in Crawford I did not support its conclusion of de jure segregation, when viewed in light of subsequent Supreme Court decisions emphasizing the need for showing specific discriminatory intent. Because the Court of Appeal viewed the findings as establishing only de facto segregation in the District schools, it concluded that a federal court would not be authorized under federal law to order pupil assignment and transportation. Consequently, Proposition I barred the state court from doing so. The court thereupon vacated the orders of May 19, 1980, and July 7, 1980, and remanded to the Superior Court "for further proceedings consistent with this opinion." The California Supreme Court refused review on March 11, 1981, and the case was remitted to the Superior Court on the next day.2

Following the remittitur,3 the District submitted a revised desegregation plan with no mandatory pupil reassignment or mandatory busing. The plan was accepted by the Superior Court, with modifications, on September 10, 1981. On November 25, 1981, the Superior Court awarded plaintiffs attorneys' fees and costs and, declaring that the "underlying issues have been resolved," terminated jurisdiction. The Crawford plaintiffs appealed the September 10, 1981 order but dropped their appeal on May 24, 1983, thus closing the last chapter of the Crawford litigation.4

The NAACP filed the present case while Crawford was still pending in the California Superior Court following the remittitur from Crawford II. The district court refused to give res judicata effect to the Crawford litigation because it determined that no final judgment had yet been entered in that case and that retrial of the de jure issue on remand had not been foreclosed by the appellate court's remittitur.5 A three-judge panel of this court reversed the district court on the ground that the Crawford judgment had since become final and that therefore relitigation of the claim that the District was segregated de jure on or before September 10, 1981, was barred by the doctrines of res judicata and collateral estoppel.6 We granted the NAACP's petition for rehearing en banc and withdrew the opinion of the three-judge panel.7 Because we agree that relitigation of the de jure claim is barred by the doctrine of res judicata, we reverse the order of the district court. We determine the bar, however, to apply only to events occurring on or before May 2, 1969.

The state court judgment in the Crawford litigation is entitled to the same preclusive effect in this court as it would be accorded in a California court, whether the effect is one of claim preclusion or issue preclusion. 28 U.S.C. Sec. 1738; Migra v. Warren City School District Board of Education, --- U.S. ----, 104 S.Ct. 892, 896-98, 79 L.Ed.2d 56 (1984). Under California law, the claim preclusion aspect of res judicata, also referred to as bar or merger, precludes the maintenance of a second suit between the same parties on the same cause of action so long as the first suit concluded in a final judgment on the merits. Agarwal v. Johnson, 25 Cal.3d 932, 954, 160 Cal.Rptr. 141, 155, 603 P.2d 58, 72 (1979); Slater v. Blackwood, 15 Cal.3d 791, 795, 126 Cal.Rptr. 225, 226, 543 P.2d 593, 594 (1975). All issues that were litigated or that might have been litigated as part of the cause of action are barred. Olwell v. Hopkins, 28 Cal.2d 147, 152, 168 P.2d 972, 975 (1946). The parties no longer dispute that there is now a final judgment on the merits in Crawford. We therefore turn our attention to the more complex problem of determining whether this action involves the same cause of action and the same parties as Crawford.

The plaintiffs argue that the claim sued upon in this action is not the same as that in Crawford. They contend that the Crawford plaintiffs sued for violation of a right arising under the state constitution--the right to be free of de facto segregation. Plaintiffs assert that here they are suing for violation of a right arising under the Federal Constitution--the right to be free of de jure segregation. There are at least two major flaws in plaintiffs' argument.

First, the record in Crawford simply does not support the contention that plaintiffs there confined their claim to de facto segregation in violation of state law. The Crawford plaintiffs pleaded violations of the Fourteenth Amendment. They successfully moved the state court to be allowed to show bad faith on the part of the School District in maintaining segregation in the schools, injecting the element of defendants' intent into the trial. The findings and conclusions of the state trial judge directly addressed de jure segregation as a violation of the Federal Constitution. It is true that the California Supreme Court in Crawford I chose not to rely on the de jure findings, but that fact did not permanently remove the de jure issue from the case. When the School District moved to modify the desegregation plan after the passage of Proposition I, the Crawford plaintiffs responded in a memorandum of April 23, 1980, to the state trial court: "In Crawford, the Court heard and decided the Fourteenth Amendment issues and defense, and found de jure segregation. The violations and defense were pleaded, argued, and decided. They cannot now be relitigated by invasion of the final judgment." Thereafter, the California Court of Appeal addressed the de jure issue and held that the trial court's 1970 findings did not support a conclusion of de jure segregation. 113 Cal.App.3d at 645-46, 170 Cal.Rptr. at 503-04. The de jure issue had to be addressed at that time in order to determine the effect of Proposition I on the existing desegregation plan that included mandatory pupil reassignment and transportation. In view of this record, it is not possible to accept the contention of plaintiffs here that the Crawford litigation had nothing to do with de jure segregation in violation of the United States Constitution.

The second major flaw in plaintiffs' argument is that it misconceives the scope of a cause of action under California law. As plaintiffs correctly point out, California follows the "primary rights" theory, under which the right sought to be enforced determines the cause of action. See 3 Witkin, California Procedure, Pleadings Sec. 22 (1971). The invasion of more than one primary right gives rise to as many causes of action as rights violated, even though all may arise from a single set of facts. See, e.g., Sawyer v. First City Financial Corp., 124 Cal.App.3d 390, 399, 177 Cal.Rptr. 398, 403 (1981). California's rule, however, does not mean that different causes of action are involved just because relief may be obtained under either state or federal law, or under either of two legal theories. See Boccardo v. Safeway Stores, Inc., 134 Cal.App.3d 1037, 1043, 1054, 184 Cal.Rptr. 903, 907, 914 (1982); City of Los Angeles v. Superior Court, 85 Cal.App.3d 143, 150, 152, 149 Cal.Rptr. 320, 325 (1978). Two recent California cases illustrate the distinction. In Mattson v. City of Costa Mesa, 106 Cal.App.3d 441, 447, 164 Cal.Rptr. 913, 917 (1980), the plaintiff had previously brought a federal civil rights action alleging assault and wrongful arrest. He then brought an action in state court alleging that the same conduct constituted the common law tort of negligence. The California Court of Appeal held that the second action was barred because both actions sought redress for injury to plaintiff's interest in personal security and integrity. To be contrasted with Mattson is Agarwal v. Johnson, 25 Cal.3d 932, 954, 160 Cal.Rptr. 141, 155, 603 P.2d 58, 72 (1979). There plaintiff first brought suit in federal court for employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e. He subsequently was permitted to sue his employer in state court for the common law torts of defamation and intentional infliction of emotional distress arising out of the same discriminatory employment practice. The California Supreme Court held that the federal action was brought to remedy the economic loss in wages, while the state action was brought to redress injuries to the different interests in reputation and peace of mind. As both Mattson and Agarwal indicate, the single most important factor in determining whether a single course of conduct has violated more than one primary right is whether plaintiff suffered injury to more than one interest. See also Ford Motor Co. v. Superior Court, 35 Cal.App.3d 676, 679, 110 Cal.Rptr. 59, 61 (1973).

In light of these decisions, we are unable to accept plaintiffs' contention that they are attempting to enforce a different primary right than were the plaintiffs in Crawford. We would adhere to that conclusion even if the Crawford litigation had been confined to de facto segregation in violation of state law. The right to be free from de facto segregation is not a thing apart from the right to be free from de jure segregation; the former necessarily encompasses the latter. The California Supreme Court in Crawford I held that school boards had an affirmative duty to take reasonable steps to eliminate both de facto and de jure segregation. 17 Cal.3d at 301-02, 130 Cal.Rptr. at 738, 551 P.2d at 42. That duty survived Proposition I. Crawford II, 113 Cal.App.3d at 655, 170 Cal.Rptr. at 510. The California Supreme Court clearly regarded the injury from both kinds of segregation to be the same: "[T]here is virtually no dispute that the practical effect of segregated schooling on minority children does not depend upon whether a court finds the segregation de jure or de facto in nature; the isolation and debilitating effects do not vary with the source of the segregation." Crawford I, 17 Cal.3d at 301, 130 Cal.Rptr. at 737-38, 551 P.2d at 41-42. See also Keyes v. School District No. 1, 413 U.S. 189, 229-30 & n. 14, 93 S.Ct. 2686, 2707-08 & n. 14, 37 L.Ed.2d 548 (1973) (Powell, J., concurring). We can only conclude that California regards the primary right underlying de jure and de facto claims to be one and the same--"the right to an equal opportunity for education."8 Crawford I, 17 Cal.3d at 305, 130 Cal.Rptr. at 740, 551 P.2d at 44. See also Crawford II, 113 Cal.App.3d at 649, 170 Cal.Rptr. at 506. Since the primary right enforced in Crawford was the same as the primary right asserted in this litigation, the present action is barred as to all matters that might have been litigated by the same parties in Crawford.

Our conclusion that the same primary right is involved also puts to rest the contention that the federal claim is not barred because the federal right is narrower than the state right. It is true that federal law does not place school boards under a duty to alleviate de facto segregation. See Pasadena City Board of Education v. Spangler, 427 U.S. 424, 435-36, 96 S.Ct. 2697, 2704-05, 49 L.Ed.2d 599 (1976); Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). The right to desegregate is therefore greater under California law than under the Federal Constitution, as the Supreme Court observed in Crawford v. Board of Education, 458 U.S. 527, 535, 102 S.Ct. 3211, 3216, 73 L.Ed.2d 948 (1982). But the doctrine of res judicata, in California as elsewhere, not only bars the maintenance of the identical cause of action in a subsequent suit by the same parties. It also bars the maintenance of a subsequent action on any part of the original cause of action, even if that part was not litigated in the prior action. Restatement of Judgments Sec. 62 (1942), cited with approval in Mattson v. City of Costa Mesa, 106 Cal.App.3d at 449, 164 Cal.Rptr. at 918. Similarly, a plaintiff with a claim supported by both state and federal law may not bring separate actions on each ground; the first action precludes the second if the first court had jurisdiction to adjudicate both grounds. Migra v. Warren City School District Board of Education, 104 S.Ct. at 898; Restatement (Second) of Judgments Sec. 61.1 comment e (1982).

Res judicata claim preclusion does not, of course, bar plaintiffs from litigating matters that were not within the scope of the claim litigated in Crawford. The Crawford claim necessarily included all segregative acts of the District occurring prior to commencement of the Crawford litigation in August 1963. See Restatement (Second) of Judgments Sec. 24, comment d, Sec. 26, comment h (1980). The stipulation of the parties, accepted by the trial court, extended the scope of the claim to cover the period from 1963 to the time of trial. The trial court considered the effects of School District inaction up to the end of the trial, and the California Supreme Court in affirming in Crawford I, characterized the trial court's findings and conclusions as covering the "relevant time period--which ran through the conclusion of the trial in May 1969." 17 Cal.3d at 288, 130 Cal.Rptr. at 728, 551 P.2d at 32. We conclude, therefore, that segregative acts occurring before the close of the Crawford trial of the merits on May 2, 1969 fall within the bar of res judicata.

It has been argued, and the three judge panel of this court held, that the bar of the Crawford litigation must extend to all segregative acts occurring prior to September 10, 1981, the date that trial court terminated the litigation on the merits and discharged the writ of mandate. We reject that position. The scope of litigation is framed by the complaint at the time it is filed. The rule that a judgment is conclusive as to every matter that might have been litigated "does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated." Kettelle v. Kettelle, 110 Cal.App. 310, 312, 294 P. 453, 454 (1930); see Lord v. Garland, 27 Cal.2d 840, 849, 168 P.2d 5, 11 (1946); Brown v. Brown, 170 Cal. 1, 4, 147 P. 1168, 1170 (1915); Metropolis Trust & Savings Bank v. Barnet, 165 Cal. 449, 452-53, 132 P. 833, 834 (1913). Plaintiffs may bring events occurring after the filing of the complaint into the scope of the litigation by filing a supplemental complaint with leave of court, Cal.Civ.Proc.Code Sec. 464, but there is no requirement that plaintiffs do so.9 The stipulation of the parties that permitted the court to consider events occurring from 1963 to the time of trial was clearly intended to operate as a supplemental pleading, but it specified that "[t]he rights of petitioners, if any, and the duties of respondent, if any, shall be determined as of the time of trial." It therefore cannot have extended the durational scope of the litigation past the close of trial of the merits on May 2, 1969--the date that the California Supreme Court stated to be the end of the period relevant to the trial court's findings and conclusions.

If the Crawford plaintiffs had actually litigated the liability of the District for segregative acts occurring after May 2, 1969, then the res judicata bar would have to expand to encompass those events and others that might have been litigated with them. The record indicates, however, that the Crawford plaintiffs did not so open the litigation to later events. Judge Gitelson entered his findings and conclusions on May 12, 1970. The California Supreme Court affirmed on June 28, 1976 (Crawford I ). The case was then remanded for the adoption and approval of a desegregation plan. All further proceedings were concerned entirely with the appropriateness and legality of various Board plans, before and after passage of Proposition I.

It is true that the Crawford plaintiffs litigated the constitutionality of Proposition I, but that was an argument over remedy, not right. Indeed, the plaintiffs' memorandum of December 19, 1979, contended that Proposition I was unconstitutional because it retroactively deprived plaintiffs of the benefits of the 1970 findings and mandate, which they contended were res judicata.

The decision in Crawford II on December 19, 1980, was entirely a review of the 1970 findings and conclusions. It did not purport to deal with any school board actions subsequent to that time. After the remittitur, plaintiffs contended in the trial court that the Board resolution of March 16, 1981, was unconstitutional, by its own force and because it violated the mandates of Crawford I and II. The unconstitutionality of the Board resolution was urged not as a new source of liability, but as a ground for holding the Board's plan to be improper as relief.

The two final orders in the Crawford litigation drive the point home further. Judge Lopez' order of September 10, 1981, which ended the litigation on the merits, held that the Board had "satisfied the mandate of the Court issued on May 19, 1970," as interpreted in Crawford I and II, and accordingly discharged the writ of mandate. In his final order awarding attorneys' fees and terminating jurisdiction on November 25, 1981, Judge Lopez recited that the case could best be thought of in two parts: the first relating to the "trial of the right of the children to a desegregated education" that ended in a judgment affirmed in 1976, and the second the enforcement of that judgment. "Since 1976, this case has been in the remedy enforcement phase. The sole task before the Court was the supervision of the evolution and adoption of a Plan for desegregation. No rights were at issue."10

The Crawford record therefore supports the view that the scope of the claim litigated in that case did not include any segregative acts of the District occurring after May 2, 1969. The claim preclusion bar of Crawford therefore extends only to segregative acts occurring on or before May 2, 1969. Any acts of de jure segregation committed by defendants after that date are not precluded and may be pursued by plaintiffs in this litigation. In such ensuing proceedings, the parties may introduce evidence of events occurring on or before May 2, 1969, so long as it is relevant to a claim of de jure segregative acts committed by defendants after that date. They may not, however, relitigate any claim that the District had committed de jure segregation on or before May 2, 1969. See Bronson v. Board of Education, 525 F.2d 344, 350 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1665, 48 L.Ed.2d 175 (1976).

A judgment on behalf of a class binds all persons belonging to the class and all those who subsequently come into the class. King v. International Union of Operating Engineers, 114 Cal.App.2d 159, 164-65, 250 P.2d 11, 14 (1952); see Cooper v. Federal Reserve Bank of Richmond, --- U.S. ----, ----, ----, 104 S.Ct. 2794, 2798, 2802, 81 L.Ed.2d 718 (1984). The plaintiff class in Crawford consisted of all black and Hispanic children attending school in the Los Angeles Unified School District.11 It is clear from the final order of the state trial court on September 10, 1981, that the class remained open to that date, because the relief encompassed, and was intended to benefit, black and Hispanic children in school on that date.

The class certified in the present action includes all existing and future black students who are or become eligible to attend the District's schools during the pendency of this action. The present class therefore comprises some members who were also members of the Crawford class and others who were not. The former are clearly bound by Crawford under the traditional application of res judicata; the latter are not. See 3 Witkin, supra, Judgments Sec. 282. California has expanded the traditional rule, however, to apply the preclusive effect of a prior judgment to nonparties whose interests were "virtually represented" by one of the parties to the litigation. See e.g., Rynsburger v. Dairymen's Fertilizer Corp., 266 Cal.App.2d 269, 278, 72 Cal.Rptr. 102, 107-08 (1968); King v. International Union of Operating Engineers, 114 Cal.App.2d at 164, 250 P.2d at 13. The nonparty is bound under the rule if he was "so far represented by others that his interest received actual and efficient protection." Rynsburger, 266 Cal.App.2d at 278, 72 Cal.Rptr. at 107; see also Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.1975). The application of this doctrine to desegregation cases is particularly appropriate. It has been recognized that unless subsequent generations of school children are bound by preclusion rules from relitigating identical claims of unlawful segregation, those claims would assume immortality. See, e.g., Bell v. Board of Education, 683 F.2d 963, 966 (6th Cir.1982); Bronson v. Board of Education, 525 F.2d 344, 349 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1665, 48 L.Ed.2d 175 (1976).

We see no reason why the California courts would not apply the doctrine of virtual representation here to preclude post-1981 black school children from litigating any part of the cause of action litigated in Crawford. There is no contention by plaintiffs that the Crawford class was inadequately represented. Nor have they made any showing that the interests of the two classes are different. Although Proposition I limited the remedies available to the state courts for alleviating de facto segregation, it did not alter the substantive right that had been recognized in Jackson and Crawford I. Crawford II, 113 Cal.App.3d at 655-56, 170 Cal.Rptr. at 509-10. The relief granted and the relief available in Crawford would not have changed its character had all the members of the present plaintiff class been parties.

We conclude, therefore, that the California courts would give preclusive effect to the Crawford judgment against all plaintiffs in this case as to any claim of unlawful segregative actions